On this page
American Heritage Dictionary:
ha·be·as corpus |
[Middle English, from Medieval Latin habeās corpus, produce the body (from the opening words of the writ) : Latin habeās, second person sing. present subjunctive of habēre, to have + Latin corpus, body.]
|
Featured Videos:
|
Barron's Business Dictionary:
habeas corpus |
| HIT, Guild, Guide | |
| Habendum, Hacker, Half Duplex |
Oxford Companion to the US Supreme Court:
Habeas Corpus |
The “Great Writ” of habeas corpus is available so that a judge may inquire into the legality of any form of loss of personal liberty. Detention, or loss of personal liberty, may occur at all levels of government, and may take various forms: incarceration in some sort of jail or penitentiary pursuant to a court judgment, detention in a police station after an arrest, commitment in a mental institution, service in the armed forces, detention on the basis of quarantine regulations, or restraint by private authority, as in the case of spouses or the custody of minors.
Habeas corpus has certain important characteristics. For one thing, there is no statute of limitations regarding access to it, since the right of personal freedom from illegal restraint never lapses. Neither does one failure to secure the writ forbid later application, which means that the usual doctrine regarding the finality of court judgments (res judicata) does not apply to habeas corpus. In recent decisions, the Supreme Court has expressed its disapproval of multiple application for the writ. Furthermore, unlike other legal actions, a relative or friend may petition for the writ in behalf of a person unable to apply on his or her own behalf. Called “the most important human right in the Constitution,” Chief Justice Salmon P. Chase described it in Ex parte Yerger (1868) as “the best and only sufficient defense of personal freedom” (p. 95).
The historical roots of the Great Writ are not clear, but it is usually ascribed to section 39 of Magna Carta (1215). During the Middle Ages the writ had various uses. For example, it could be used to compel a person to appear in court to give testimony. As a remedy against the Crown (that is to say, the government), its availability dates from the end of the fifteenth century. The essential elements of the writ as it is now generally understood were spelled out by Parliament in the Habeas Corpus Act of 1679. In the American colonies the writ was available as part of the common law. After independence, habeas corpus was guaranteed in most of the early state constitutions. The U.S. Constitution, in Article I, section 9, forbids suspension of the writ “unless when in Cases of Rebellion or Invasion the public Safety may require it.” The very first statute enacted by the First Congress, the Judiciary Act of 1789, empowered all federal courts “to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.” All states have similar statutes.
The writ orders the person who is responsible for the detention—for example, the warden or jailer—to produce the petitioner (that is, the body, or corpus) quickly, in court, so that a judge may decide the lawfulness of the detention. Neither federal nor state habeas corpus statutes attempt to define just what constitutes an unlawful detention; they merely provide for a procedure by which a judge may look into the matter. However, as Justice William J. Brennan pointed out in Fay v. Noia (1963):
Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. (pp. 401–402)
Bibliography
— David Fellman
Oxford Dictionary of the US Military:
habeas corpus |
A common-law writ ordering a person who detains another to present that person before a court or judge in order to determine the legality of the detention. Protected by Article I, Section 9 of the U.S. Constitution, the right to habeas corpus is a protection of individual liberty.
See the Introduction, Abbreviations and Pronunciation for further details.
Oxford Dictionary of Politics:
habeas corpus |
Literally, ‘that you have the body’. A writ directed to the person who has someone in detention or custody and commands the detained person to be produced before a court. It dates back to Edward I's reign and was not then intended to get people out of prison but to ensure that they were in lawful custody in prison. The writ has been subject to a large number of statutory interventions and cases decided by the courts. Its constitutional significance is that it is a remedy available against Crown servants or servants acting in the name of the Crown. It was imported into other states that shared the English legal tradition, notably the United States.
Habeas corpus is used to test the validity of detention by the police, detention in cases of deportation, and in cases where there is an alleged breach of immigration regulations. In determining the outcome of the application, the legality of the detention is usually examined by the judge. The Habeas Corpus Acts 1679 and 1816 strengthened the role of the courts, and allowed the courts to determine for themselves the existence of facts, rather than rely on the assertions made by the executive.
Within the United Kingdom, habeas corpus is restricted to the jurisdiction of the English courts. In re Keenan [1972] 1 QB 533, it was held that there was no jurisdiction in the English courts to issue habeas corpus to persons detained in Northern Ireland. There is doubt as to the jurisdiction of the English courts to issue habeas corpus to British subjects throughout the world where the country is ‘a colony, or foreign dominion of the Crown’ (Habeas Corpus Act 1862). Habeas corpus has a greater reputation than perhaps the historical evidence may support, for affording the citizen protection against abuse of power by the state.
— John McEldowney
Oxford Dictionary of British History:
habeas corpus |
Before Magna Carta, the writ of habeas corpus constituted a command in the king's name to have a defendant brought physically before the court. It had then no libertarian function. In the 17th cent. it was employed to challenge arbitrary arrests by the royal government. In Darnel's case in 1627, the judges refused to allow bail to a person detained ‘at the special command of the king’. The petition of right (1628) protested at the practice, but opponents of the crown such as Sir John Eliot and John Selden (1629) continued to be committed for political purposes.
When the king lost control of the situation in 1640, his adversaries moved to defend habeas corpus. The Act of 1641 which abolished Star Chamber declared that the writ could ensure that a person imprisoned by king and council should be brought before the court without delay with the cause of imprisonment shown. After the Restoration, the struggle was resumed.
The Habeas Corpus Act of 1679 blocked up many of the loopholes and improved the mechanism of enforcement. In Scotland, the equivalent to habeas corpus was obtained by an Act for Preventing Wrongous Imprisonments in 1701.
Columbia Encyclopedia:
habeas corpus |
The term is mentioned as early as the 14th cent. in England, and was formalized in the Habeas Corpus Act of 1679. The privilege of the use of this writ as a safeguard against illegal imprisonment was highly regarded by the British colonists in America, and wrongful refusals to issue the writ were one of the grievances before the American Revolution. As a result, the Constitution of the United States provides that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (Article 1, Section 9). President Lincoln suspended habeas corpus in 1861 at the beginning of the Civil War, and his decision was upheld by Congress-despite protests by Chief Justice Roger Taney that such suspension was not within the powers of the president. The Supreme Court's liberal decisions in the 1950s and 1960s in the area of prisoners' rights encouraged many incarcerated persons to file writs challenging their convictions, but the Court under William Rehnquist limited multiple habeas corpus filings, particularly from prisoners on death row.
Bibliography
See P. D. Halliday, Habeas Corpus: From England to Empire (2010); J. J. Wert, Habeas Corpus in America (2011).
West's Encyclopedia of American Law:
Habeas Corpus |
[Latin, You have the body.] A writ (court order) that commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determine the legality of custody and decide whether to order the prisoner's release.
A writ of habeas corpus directs a person, usually a prison warden, to produce the prisoner and justify the prisoner's detention. If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the court may order the inmate's release. Habeas corpus relief may also be used to obtain custody of a child or to gain the release of a detained person who is insane, is a drug addict, or has an infectious disease. Usually, though, it is a response to imprisonment by the criminal justice system.
A writ of habeas corpus is authorized by statute in federal courts and in all state courts. An inmate in state or federal prison asks for the writ by filing a petition with the court that sentenced him or her. In most states, and in federal courts, the inmate is given the opportunity to present a short oral argument in a hearing before the court. The petitioner may also receive an evidentiary hearing to establish evidence for the petition.
The habeas corpus concept was first expressed in the Magna Charta, a constitutional document forced on King John by English landowners at Runnymede on June 15, 1215. Among the liberties declared in the Magna Charta was this: "No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way, nor will we enter on him or send against him except by the lawful judgment of his peers, or by the law of the land." This principle evolved to mean that no person should be deprived of freedom without due process of law.
The writ of habeas corpus was first used by the common-law courts in thirteenth- and fourteenth-century England. These courts, composed of legal professionals, were in competition with feudal courts, which were controlled by local landowners, or "lords." The feudal courts lacked procedural consistency, and on this basis, the common-law courts began to issue writs demanding the release of persons imprisoned by them. From the late fifteenth to the seventeenth centuries, the common-law courts used the writ to order the release of persons held by royal courts, such as the Chancery, Admiralty courts, and the Star Chamber.
The only reference to the writ of habeas corpus in the U.S. Constitution is contained in Article I, Section 9, Clause 2. This clause provides, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The writ was suspended by President Abraham Lincoln during the Civil War in 1861 when he authorized his generals to arrest anyone thought dangerous. It was also suspended by Congress in 1863 to allow the Union army to hold people temporarily until trial in the civilian courts. The Union army reportedly ignored the statute suspending the writ and conducted trials under martial law.
In 1789, Congress passed the Judiciary Act of 1789 (ch. 20, § 14, 1 Stat. 73 [codified in title 28 of the U.S.C.A.]), which granted to federal courts the power to hear the habeas corpus petitions of federal prisoners. In 1867, Congress passed the Habeas Corpus Act of February 5 (ch. 28, 14 Stat. 385 [28 U.S.C.A. § 2241 et seq.]). This act gave federal courts the power to issue habeas corpus writs for "any person … restrained in violation of the Constitution, or of any treaty or law of the United States." The U.S. Supreme Court has interpreted this statute to mean that federal courts may hear the habeas corpus petitions of state prisoners as well as federal prisoners.
The writ of habeas corpus is an extraordinary remedy because it gives a court the power to release a prisoner after the prisoner has been processed through the criminal justice system, with all its procedural safeguards and appeals. For this reason, the burden is initially on the petitioning prisoner to prove that he or she is being held in violation of a constitutional right. If the petitioner can meet this burden with sufficient evidence, the burden shifts to the warden to justify the imprisonment.
A prisoner may file a petition for a writ of habeas corpus with the sentencing court only after exhausting all appeals and motions. Federal courts may receive a petition from a state prisoner, but not until the petitioner has attempted all available appeals and motions and habeas corpus petitions in the state courts. Federal prisoners must exhaust all available appeals and motions in the federal sentencing court and federal appeals courts before filing a habeas corpus petition with the sentencing court. If the first petition is denied, the inmate may petition the appeals courts.
A petition for a writ of habeas corpus is a civil action against the jailer. It is not an appeal and not a continuation of the criminal case against the inmate. It is not used to determine guilt or innocence. Rather, the purpose of the suit is solely to determine whether the confinement is in violation of a constitutional right. This is significant because it limits the scope of complaints a petitioner may use as a basis for the writ.
Violation of the Due Process Clauses of the Fifth and Fourteenth Amendments is the most common basis for a writ of habeas corpus. Prosecutorial misconduct, juror malfeasance, and ineffective assistance of counsel are common due process grounds for the writ. Fifth Amendment grounds include failure of the police to give Miranda warnings before in-custody questioning, in violation of the right against self-incrimination, and multiple trials, in violation of the double jeopardy prohibition. The Eighth Amendment right against cruel and unusual punishment is another common ground for habeas corpus relief, especially in cases involving the death penalty or a lengthy prison term.
There are several notable restrictions on the writ's application. Fourth Amendment violations of the right against unreasonable search and seizure cannot be raised in a habeas corpus petition. Inmates are not entitled to a court-appointed attorney for habeas corpus petitions. Newly developed constitutional principles will not be applied retroactively in habeas corpus cases except where doubt is cast on the guilt of the prisoner. Delay in filing a habeas petition may result in its dismissal, if the government is prejudiced (made less able to respond) by the delay. In addition, the petitioner must be in custody to request a writ of habeas corpus. This rule prevents an inmate from challenging a conviction through habeas corpus after serving out a prison term for the conviction.
The law of habeas corpus is ever changing. In the 1990s, the U.S. Supreme Court took steps to further limit the writ's application. In Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992), the Court held that a habeas corpus petitioner is not entitled to an evidentiary hearing in federal court unless she or he can show two things: a reason for failing to develop evidence at trial, and actual prejudice to the inmate's defense as a result of the failure. In Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), the Court held that a claim of actual innocence is not a basis for federal habeas corpus relief. This means that newly discovered evidence alone does not entitle a petitioner to federal habeas corpus relief.
The availability and import of habeas corpus in state courts is also subject to change through judicial decisions and new laws. For example, in 1995, the Texas Legislature passed a law that made the habeas corpus process concurrent with appeals (Tex. Crim. Proc. Code Ann. art. 11.071). This law effectively limited the number of times a Texas state prisoner could challenge the disposition of a criminal case. Significantly, the law applied to all criminal defendants, including defendants facing the death penalty. Under the legislation, a death row inmate has only one round of review in Texas state courts before seeking relief in federal court.
In 1996 Congress passed a law restricting access to habeas corpus relief (Pub. L. No. 104-132). Under the new law, if a state provides a convict with competent postconviction counsel, there is a six month statute of limitations on filing a habeas petition. If counsel is not provided, the convict has a one year limitations period for investigating and filing the petition. The new law limits the time a federal court can spend on the case, limits its ability to hold evidentiary hearings or challenge factual determinations of the state court, and curtails the possibility of successive habeas petitions. In addition, the law eliminated federal funding for death penalty resource centers, which assist death row inmates with appeals.
Many states have also begun restricting time limits and other aspects of the postconviction review process.
Latin Phrase:
Habeas Corpus |
Literally that you have a body. A writ requiring that a detained individual be brought before a court to decide the legality of that individual's detention.
Dictionary of Cultural Literacy: Politics:
habeas corpus |
A legal term meaning that an accused person must be presented physically before the court with a statement demonstrating sufficient cause for arrest. Thus, no accuser may imprison someone indefinitely without bringing that person and the charges against him or her into a courtroom. In Latin, habeas corpus literally means “you shall have the body.”
Devil's Dictionary:
habeas corpus |
Random House Word Menu:
categories related to 'habeas corpus' |
Wikipedia on Answers.com:
Habeas corpus |
| Prerogative writs |
|---|
| Philippines-specific |
| Amparo and Habeas Data |
Habeas corpus (Latin: "you may have the body")[1] is a writ, or legal action, through which a prisoner can be released from unlawful detention, that is, detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner or by another person coming to their aid. Habeas corpus originated in the English legal system, but it is now available in many nations. It has historically been an important legal instrument safeguarding individual freedom against arbitrary state action. It is a writ requiring a person to be brought before a judge.
A writ of habeas corpus, also known as the Great Writ, is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the person. If the custodian does not have authority to detain the prisoner, then he must be released from custody. The prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado. Most civil law jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called "habeas corpus".[2] For example, in some Spanish-speaking nations, the equivalent remedy for unlawful imprisonment is the amparo de libertad ('protection of freedom').
Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law then habeas corpus may not be a useful remedy. Furthermore, in many countries, the process may be suspended due to a national emergency.
The right to petition for a writ of habeas corpus has nonetheless long been celebrated as the most efficient safeguard of the liberty of the subject. The jurist Albert Venn Dicey wrote that the British Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty".[3]
The writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the English courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent has the burden to prove his authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.
|
Contents
|
Habeas corpus (
/ˌheɪbiːəs ˈkɔrpəs/) is a Latin phrase, which can be literally translated as “(We command) that you have the body”.[4] or "you should arrest" the conventional incipit of medieval arrest warrants in England. The writ is referred to in full in legal texts as habeas corpus ad subjiciendum or more rarely ad subjiciendum et recipiendum. It is sometimes described as the “great writ”. Its name derives from the operative words of the writ in Medieval Latin:
Praecipimus tibi quod corpus A.B. in prisona nostra sub custodia tua detentum, ut dicitur, una cum die et causa captionis et detentionis suae, quocumque nomine praedictus A.B. censeatur in eadem, habeas coram nobis ... ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte. Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve.
We command you, that the body of A.B. in Our prison under your custody detained, as it is said, together with the day and cause of his taking and detention, by whatever name the said A.B. may be known therein, you have at our Court ... to undergo and to receive that which our Court shall then and there consider and order in that behalf. Hereof in no way fail, at your peril. And have you then there this writ.
The word habeas in the writ is in the subjunctive (specifically the volitive subjunctive): "We command that you have ...". That the basic form of the writs of habeas corpus, now written in English, has changed little over the centuries can be seen from the following examples.
VICTORIA by the Grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to J.K., Keeper of our Gaol of Jersey, in the Island of Jersey, and to J.C. Viscount of said Island, Greeting. We command you that you have the body of C.C.W. detained in our prison under your custody, as it is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called or known, in our Court before us, at Westminster, on the 18th day of January next, to undergo and receive all and singular such matters and things which our said Court shall then and there consider of him in this behalf; and have there then this Writ.
United States of America, Second Judicial Circuit, Southern District of New York, ss.: We command you that the body of Charles L. Craig, in your custody detained, as it is said, together with the day and cause of his caption and detention, you safely have before Honorable Martin T. Manton, United States Circuit Judge for the Second Judicial Circuit, within the circuit and district aforesaid, to do and receive all and singular those things which the said judge shall then and there consider of him in this behalf; and have you then and there this writ.
The full name of the writ is often used to distinguish it from similar ancient writs, also named habeas corpus. These include
In the 17th century the foundations for habeas corpus were "wrongly thought" to have originated in the Magna Carta.[5] This charter declared that
No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.
Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. However, other writs were issued with the same effect as early as the reign of Henry II in the twelfth century. Blackstone explained the basis of the writ, saying "The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted." The procedure for issuing a writ of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous law (the Habeas Corpus Act 1640) had been passed forty years earlier to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus.
Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the royal courts of law. A habeas corpus petition could be made by the prisoner himself or by a third party on his behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge. Since the eighteenth century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Case (1771), where the black slave Somersett was ordered to be freed. In that case these famous words are said to have been uttered "The air of England has long been too pure for a slave, and every man is free who breathes it".[6]
The privilege of habeas corpus has been suspended or restricted several times during English history, most recently during the eighteenth and nineteenth centuries. Although internment without trial has been authorised by statute since that time, for example during the two World Wars and the Troubles in Northern Ireland, the habeas corpus procedure has in modern times always technically remained available to such internees. However, as habeas corpus is only a procedural device to examine the lawfulness of a prisoner's detention, so long as the detention is in accordance with an Act of Parliament, the petition for habeas corpus is unsuccessful. Since the passage of the Human Rights Act 1998, the courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rights, but such a declaration of incompatibility has no legal effect unless and until it is acted upon by the government.
The wording of the writ of habeas corpus implies that the prisoner is brought to the court for the legality of the imprisonment to be examined. However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian, modern practice in England is for the original application to be followed by a hearing with both parties present to decide the legality of the detention, without any writ being issued. If the detention is held to be unlawful, the prisoner can usually then be released or bailed by order of the court without having to be produced before it. It is also possible for individuals held by the state to petition for judicial review, and individuals held by non-state entities to apply for an injunction.
The writ of habeas corpus as a procedural remedy is part of Australia's English law inheritance.[7] In 2005, the Australian parliament passed the Australian Anti-Terrorism Act 2005. Some legal experts questioned the constitutionality of the act, due in part to limitations it placed on habeas corpus.[8][unreliable source?]
Habeas corpus rights are part of the British legal tradition inherited by Canada. The rights exist in the common law but have been enshrined in the Constitution Act 1982, under Section Ten of the Charter of Rights and Freedoms.[9] This states that "Everyone has the right on arrest or detention... (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful."
Suspension of the writ in Canadian history occurred famously during the October Crisis, during which the War Measures Act was invoked by the Governor General of Canada on the constitutional advice of Prime Minister Pierre Trudeau, who had received a request from the Quebec Cabinet. The Act was also used to justify German, Slavic, and Ukrainian Canadian internment during the First World War, and the internment of German-Canadians, Italian Canadians and of Japanese Canadians during the Second World War.
The writ is available where there is no other adequate remedy. However, a superior court always has the discretion to grant the writ even in the face of an alternative remedy (see May v. Ferndale Institution). Under the Criminal Code of Canada the writ is largely unavailable if a statutory right of appeal exists, whether or not this right has been exercised.
Germany has constitutional guarantees against an improper detention and have been implemented in statutory law in a manner that can be considered as equivalent to writs of habeas corpus.
Article 104, paragraph 1 of the German Constitution provides that deprivations of liberty may be imposed only on the basis of a specific enabling statute that also must include procedural rules. Article 104, paragraph 2 requires that any arrested individual be brought before a judge by the end of the day following the day of the arrest. For those detained as criminal suspects, article 104, paragraph 3 specifically requires that the judge must grant a hearing to the suspect in order to rule on the detention.
Restrictions on the power of the authorities to arrest and detain individuals also emanate from article 2 paragraph 2 of the Constitution which guarantees liberty and requires a statutory authorization for any deprivation of liberty. In addition, several other articles of the Constitution have a bearing on the issue. The most important of these are article 19, which generally requires a statutory basis for any infringements of the fundamental rights guaranteed by the Constitution while also guaranteeing judicial review; article 20, paragraph 3, which guarantees the rule of law; and article 3 which guarantees equality.
In particular, a constitutional obligation to grant remedies for improper detention is required by article 19, paragraph 4 of the Constitution which provides as follows: "Should any person’s right be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts."[10]
The Indian judiciary, in a catena of cases has effectively resorted to the writ of habeas corpus to secure release of a person from illegal detention. The Indian judiciary has dispensed with the traditional doctrine of locus standi, so that if a detained person is not in a position to file a petition, it can be moved on his behalf by any other person. The scope of habeas relief has expanded in recent times by actions of the Indian judiciary.[11] The habeas writ was used in the Rajan case. It was also filed by Panthers Party to protest the imprisonment of Anna Hazare, a social activist.
In the Republic of Ireland access to the remedy of habeas corpus is guaranteed by Article 40.4 of the 1937 constitution. This guarantees "personal liberty" to each individual and outlines a detailed habeas corpus procedure. It does not mention the Latin term but includes the English phrase "produce the body". The constitution provides that the habeas procedure is not binding on the Defence Forces during a state of war or armed rebellion.
Article 40.4.2° states that a prisoner, or anyone acting on his behalf, may make a complaint to the High Court (or to any High Court judge) of unlawful detention. The court must then investigate the matter "forthwith" and may order that the defendant bring the prisoner before the court and give reasons for his detention. The court must immediately release the detainee unless it is satisfied that he is being held lawfully. The full text of the provision is as follows:
Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law. [Italics added]
The state inherited habeas corpus as part of the common law when it seceded from the United Kingdom in 1922, but the remedy was also guaranteed by Article 6 of the Constitution of the Irish Free State in force from 1922 to 1937. A similar provision was included when the current constitution was adopted in 1937. Since that date habeas corpus has been restricted by two constitutional amendments, the Second Amendment in 1941 and the Sixteenth Amendment in 1996.
Before the Second Amendment, an individual detained had the constitutional right to apply to any High Court judge for a writ of habeas corpus and to as many High Court judges as he wished. Since the Second Amendment, a prisoner has had only the right to apply to one judge, and, once a writ has been issued, the President of the High Court has authority to choose the judge or panel of three judges who will decide the case. The amendment also added a requirement that if the High Court believes someone's detention to be invalid due to the unconstitutionality of a law, it must refer the matter to the Irish Supreme Court and may only release the individual on bail in the interim.
In 1965, the Supreme Court ruled in the O'Callaghan case that the provisions of the constitution meant that an individual charged with a crime could be refused bail only if she was likely to flee or to interfere with witnesses or evidence. Since the Sixteenth Amendment, it has been possible for a court to take into account whether a person has committed serious crimes while on bail in the past.
In Malaysia, the remedy of habeas corpus is guaranteed by the federal constitution, although not by name. Article 5(2) of the Constitution of Malaysia provides that "Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him."
As there are several statutes, for example, the Internal Security Act 1960, that still permit detention without trial, the procedure is usually effective in such cases only if it can be shown that there was a procedural error in the way that the detention was ordered.
In New Zealand habeas corpus may be invoked against the government or private individuals. In 2006, a child was allegedly kidnapped by his maternal grandfather after a custody dispute. The father began habeas corpus proceedings against the mother, the grandfather, the grandmother, the great grandmother, and another person alleged to have assisted in the kidnap of the child. The mother did not present the child to the court and so was imprisoned for contempt of court.[12] She was released when the grandfather came forward with the child in late January 2007.
In the Bill of Rights of the Philippine constitution, habeas corpus is guaranteed in terms almost identically to those used in the U.S. Constitution. in Article 3, Section 15 of the Constitution of the Philippines states that "The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it."
In 1971, after the Plaza Miranda bombing, the Marcos administration, under Ferdinand Marcos, suspended habeas corpus in an effort to stifle the oncoming insurgency, having blamed the Filipino Communist Party for the events of August 21. Many considered this to be a prelude to Martial Law. After widespread protests, however, the Marcos administration decided to reintroduce the writ. In December 2009, habeas corpus was suspended in Maguindanao as the province was placed under martial law. This occurred in response to the Maguindanao massacre.[13]
The Parliament of Scotland passed a law to have the same effect as habeas corpus in the eighteenth century. This now known as the Criminal Procedure Act 1701 c.6.[14] It was originally called an "the Act for preventing wrongful imprisonment and against undue delays in trials". It is still in force although certain parts have been repealed.
In 1526 the Fuero Nuevo established a form of habeas corpus in the territory of the Señorío de Vizcaya. The present Constitution of Spain states that "A habeas corpus procedure shall be provided for by law to ensure the immediate handing over to the judicial authorities of any person illegally arrested". The statute which regulates the procedure is the Law of Habeas Corpus of 24 May 1984 which provides that a person imprisoned may, on his own or through a third person, allege he is imprisoned unlawfully and request to appear before a judge. The request must specify the grounds on which the detention is considered to be unlawful which can be, for example, that the custodian holding the prisoner does not have the legal authority, that the prisoner's constitutional rights have been violated, or that he has been subjected to mistreatment. The judge may then request additional information if needed and may issue a habeas corpus order at which point the custodian has 24 hours to bring the prisoner before the judge.
The United States inherited habeas corpus from the English common law. In England the writ was issued in the name of the monarch. When the original thirteen American colonies declared independence, and became a republic based on popular sovereignty, any person, in the name of the people, acquired authority to initiate such writs. The U.S. Constitution specifically includes the habeas procedure in the Suspension Clause (Clause 2), located in Article One, Section 9. This states that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it."
The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement pursuant to a deportation proceeding.
In 1433 King Jagiełło granted the Privilege of Jedlna, which proclaimed, Neminem captivabimus nisi iure victum (“We will not imprison anyone except if convicted by law”). This revolutionary innovation in civil libertarianism gave Polish citizens due process-style rights that did not exist in any other European country for another 250 years. Originally, the Privilege of Jedlna was restricted to the nobility (the szlachta), but it was extended to cover townsmen in the 1791 Constitution. Importantly, social classifications in the Polish-Lithuanian Commonwealth were not as rigid as in other European countries; townspeople and Jews were sometimes ennobled. The Privilege of Jedlna provided broader coverage than many subsequently enacted habeas corpus laws because Poland’s nobility constituted an unusually large percentage of the country's total population, which was Europe’s largest. As a result, by the 16th century, it was protecting the liberty of between 500 thousand and a million Poles.[15]
In the 1950s, American lawyer Luis Kutner began advocating an international writ of habeas corpus to protect individual human rights. In 1952 he filed a petition for a "United Nations Writ of Habeas Corpus" on behalf of William N. Oatis, an American journalist jailed the previous year by the Communist government of Czechoslovakia.[16] Alleging that Czechoslovakia had violated Oatis's rights under the United Nations Charter and the Universal Declaration of Human Rights and that the United Nations General Assembly had "inherent power" to fashion remedies for human rights violations, the petition was filed with the United Nations Commission on Human Rights.[17] The Commission forwarded the petition to Czechoslovakia, but no other United Nations action was taken.[17] Oatis was released in 1953. Kutner went on to publish numerous articles and books advocating the creation of an "International Court of Habeas Corpus." [18]
|
|||||||||||||||||
This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer)
 | hab. corp. (abbreviation) |
| Octennial Act |
| Habeas Corpus Act (legal term) |
 | What are the differences of habeas corpus? Read answer... |
| What language does habeas corpus come from? Read answer... |
| Who can stop a writ of habeas corpus? Read answer... |
 | Who was king when the habeas corpus was made? |
| How do you write a petition for habeas corpus? |
| How the habeas corpus operates? |
Copyrights:
 |
 | American Heritage Dictionary. The American Heritage® Dictionary of the English Language, Fourth Edition Copyright © 2007, 2000 by Houghton Mifflin Company. Updated in 2009. Published by Houghton Mifflin Company. All rights reserved. Read more |
 |
| Barron's Business Dictionary. Dictionary of Business Terms. Copyright © 2007 by Barron's Educational Series, Inc. All rights reserved. Read more |
 |
| Oxford Companion to the US Supreme Court. The Oxford Companion to the Supreme Court of the United States. Copyright © 1992, 2005 by Oxford University Press. All rights reserved. Read more |
|
| Oxford Dictionary of the US Military. The Oxford Essential Dictionary of the U.S. Military. Copyright © 2001, 2002 by Oxford University Press, Inc. All rights reserved. Read more |
|
| Oxford Dictionary of Politics. The Concise Oxford Dictionary of Politics. Copyright © 1996, 2003 by Oxford University Press. All rights reserved. Read more |
|
| Oxford Dictionary of British History. A Dictionary of British History. Copyright © 2001, 2004 by Oxford University Press. All rights reserved. Read more |
 |
| Columbia Encyclopedia. The Columbia Electronic Encyclopedia, Sixth Edition Copyright © 2012, Columbia University Press. Licensed from Columbia University Press. All rights reserved. www.cc.columbia.edu/cu/cup/. Read more |
 |
| West's Encyclopedia of American Law. West's Encyclopedia of American Law. Copyright © 1998 by The Gale Group, Inc. All rights reserved. Read more |
 |
| Latin Phrase. © 1999-present by Answers Corporation. All rights reserved. Read more |
 |
| Dictionary of Cultural Literacy: Politics. The New Dictionary of Cultural Literacy, Third Edition Edited by E.D. Hirsch, Jr., Joseph F. Kett, and James Trefil. Copyright © 2002 by Houghton Mifflin Company. Published by Houghton Mifflin. All rights reserved. Read more |
 |
| Devil's Dictionary. Devil's Dictionary by Ambrose Bierce, 1911 Read more |
 |
| Random House Word Menu. © 2010 Write Brothers Inc. Word Menu is a registered trademark of the Estate of Stephen Glazier. Write Brothers Inc. All rights reserved. Read more |
 |
| Wikipedia on Answers.com. This article is licensed under the Creative Commons Attribution/Share-Alike License. It uses material from the Wikipedia article Habeas corpus. Read more |
Mentioned in
